KOZHIKODE DAYA HOSPITALS PRIVATE LTD., V. THE INCOME TAX OFFICER (TDS),

WP(C)/26166/2021

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Kozhikode Daya Hospitals Private Ltd. filed a writ petition against the Income Tax Officer (TDS) and the Joint Commissioner of Income Tax (TDS), challenging a penalty order (Ext.P6) issued for non-compliance with tax deduction at source (TDS) provisions. The petitioner contended that the penalty was imposed without considering their reply and while the related assessment order was under appeal. The respondents argued that the penalty was imposed after providing an opportunity to the petitioner. The court decided that the appropriate course for the petitioner was to appeal the penalty order to the appellate authority, rather than directly challenging it in the High Court.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 751312 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 24-06-2022
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: HARISANKAR MENON; MEERA MENON; R SREEJITH; K KRISHNA
• Keywords: Appeal; Coercive Steps; Jurisdiction; Natural Justice; Penalty

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944 WP(C) NO. 26166 OF 2021 PETITIONER: KOZHIKODE DAYA HOSPITALS PRIVATE LTD., V-302 AND 303, SHORNUR ROAD, NEAR VIYYUR BRIDGE, THRISSUR-680 022, REPRESENTED BY ITS MANAGING DIRECTOR, K.P. AHAMMED KOYA. BY ADVS. HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENTS: 1 THE INCOME TAX OFFICER (TDS), AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR-680 001. 2 THE JOINT COMMISSIONER OF INCOME TAX (TDS), TDS RANGE, C.R. BUILDINGS, I.S.PRESS ROAD, KOCHI 18. BY ADV CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.26166/2021 2 JUDGMENT The petitioner has approached this Court being aggrieved by Ext.P6 order imposing penalty. Primarily, it is the contention of the petitioner, that Ext.P6 was issued without considering the reply submitted by the petitioner. It is also pointed out that Ext.P6 order should not have been issued when the assessment order which gives rise to the order of penalty is under appeal before the appellate authority. 2. The learned counsel for the Department points out that the order imposing penalty was issued after giving opportunity to the petitioner. It is submitted that, at any rate, the petitioner cannot challenge Ext.P6 directly before this Court under Article 226 of the Constitution of India. 3. Having heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Income Tax Department, I am of the view that there is merit in the contention taken by the learned counsel appearing for the Income Tax Department that the petitioner has no cause of action to challenge Ext.P6 order of penalty directly before this Court under Article 226 of the Constitution of India as no jurisdictional issue is pointed out. I am also not able to find in favour of the petitioner on any issue relating to natural justice. Therefore, this writ petition will stand W.P.(C)No.26166/2021 3 disposed of permitting the petitioner to approach the appellate authority with an appeal against Ext.P6 order of penalty. The period during which this writ petition was pending before this Court namely from 22.11.2021 till today (24.6.2022) shall be excluded for the purpose of computing the period of limitation for filing the appeal, provided the appeal is filed along with a stay petition within a period of ten days from the date of receipt of a certified copy of this judgment. If the petitioner files an appeal along with the stay petition as above, any coercive steps to enforce the demand arising out of Ext.P6 order of penalty shall be kept in abeyance till a decision is taken on the stay petition to be filed by the petitioner. Sd/- GOPINATH P. JUDGE acd W.P.(C)No.26166/2021 4 APPENDIX OF WP(C) 26166/2021 PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16. Exhibit P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P3 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT. Exhibit P3(a) COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT. Exhibit P4 COPY OF LETTER FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P5 COPY OF E-MAIL FILED BY THE PETITIONER'S CHARTERED ACCOUNTANT. Exhibit P6 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. "